In re Marriage of Lehr

• Decision Date: 09 November 2000
• Docket Number: No. 1-99-1129.,1-99-1129.
• Citation: 740 N.E.2d 417,317 Ill. App.3d 853,251 Ill.Dec. 336
• Parties: In re MARRIAGE OF Rosemarie LEHR, Petitioner-Appellee, and Louis A. Lehr, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

740 N.E.2d 417

317 Ill. App.3d 853

251 Ill.Dec. 336

In re MARRIAGE OF Rosemarie LEHR, Petitioner-Appellee, and

Louis A. Lehr, Defendant-Appellant.

No. 1-99-1129.

Appellate Court of Illinois, First District, Sixth Division.

November 9, 2000.

Davis, Friedman, Zavett, Kane & MacRae, Chicago (Errol Zavett and Amy Maldonado, of counsel), for Appellant.

David B. Carlson, Evanston (David A. Novoselsky and Linda A. Bryceland of David A. Novoselsky & Associates, of counsel), for Appellee.

Presiding Justice CAMPBELL delivered the opinion of the court:

This appeal is related to this court's decision of In re Marriage of Lehr, 217 Ill.App.3d 929, 160 Ill.Dec. 840, 578 N.E.2d 19 (1991), in which this court reversed an August 30, 1988, order of the circuit court of Cook County reducing maintenance payments to petitioner Rosemarie Lehr and a July 19, 1989, order allocating attorney fees between Rosemarie and respondent Louis A. Lehr. This court held that: (1) Rosemarie's income could not be used as ground for reducing Louis's monthly obligation of unallocated alimony and child support; (2) the emancipation of the parties' children, Rosemarie's completion of mortgage payments and employment did not warrant modification of monthly obligation; and (3) the allocation of attorney fees could not be reviewed until the amount of those fees was clear from the record. The case was remanded for further proceedings consistent with this court's opinion.

In this appeal, Louis contests an order of the circuit court of Cook County awarding Rosemarie maintenance she would have received but for the now-reversed August 30, 1988, order reducing maintenance. Louis also appeals the trial court's denial of Count III of a petition he filed on remand seeking reimbursement for alleged overpayments of unallocated alimony and child support.

The record in this appeal reveals the following facts. On remand, Rosemarie filed a Motion for Entry of Judgment in the amount of $40,350, largely representing the difference in maintenance she received between September 1988 and January 1992 and the sum she would have received had maintenance not been reduced on August 30, 1988. Louis apparently moved to strike and dismiss Rosemarie's motion, though the record citation provided by Louis does not correspond to such a motion. On August 3, 1992, the trial court held a hearing on the motion stating in part that:

"This court finds that the Appellate Court, 1st District, delivered an opinion on June 28, 1991, reversing and remanding the cause for hearing, `a hearing on the reasonableness of Rosemary's [sic] attorney fees and the allocation of fees between the parties.' Said court also found that the trial court erred in reducing unallocated maintenance and support orders.

"The Appellate Court's decision in the case gave no directive to restore any portion of the reduction made by the August 30, 1988, order. The judgment of the trial court was reversed and remanded for further proceedings consistent with the Appellate Court's opinion.

"It is therefore ordered that the motion for entry of judgment is hereby stricken and dismissed and this matter shall be set for hearing on a date certain. There will be a hearing in accordance with the Appellate Court's finding."

Rosemarie's counsel and the trial court later engaged in the following exchange:

"MR. CARLSON: If I could state my objection, your Honor. It's my understanding that the opinion only remanded the issue of fees, your Honor.

"THE COURT: That's not my opinion on what the opinion says, Mr. Carlson."

Louis's counsel and the trial court then engaged in the following exchange:

"MS. MARCUS: * * * Your Honor, may we bring the order in later, your Honor?

"THE COURT: No, all I need is an order continuing it or setting this matter for—

"MS. MARCUS: For hearing. All right."

That same day, the trial court entered an order stating that Rosemarie's motion "is stricken" and setting the matter "for hearing in accordance with the ruling of the Appellate Court" at a later date certain.

Subsequently, the trial judge in this case retired; this matter was then transferred to a second trial judge.

On October 7, 1992, Louis filed a Petition to Modify Judgment for Divorce and Subsequent Order (Petition). This Petition contained three counts, but the only count relevant to this appeal is Count III. In Count III, Louis sought reimbursement for $62,000 in alleged overpayments of unallocated alimony and child support made under the original judgment for divorce and a November 28, 1978, agreed order modifying that judgment.

On November 12, 1992, Rosemarie filed a Motion to Strike and Dismiss the Petition, arguing in part that Louis was misreading the judgment and agreed order and that Louis's claim was barred by laches or estoppel. The trial court denied Rosemarie's motion on July 22, 1993.

On August 16, 1993, Rosemarie filed a second Motion for Entry of Judgment that was substantially similar to her prior motion. On October 8, 1993, Louis filed a Motion to Strike and Dismiss Rosemarie's second motion, and a Motion for Summary Judgment on his Petition. On December 21, 1993, the trial court entered an order finding that Rosemarie was due $40,350 in maintenance from Louis, but that Louis had overpaid Rosemarie in the amount of $76,800, leaving a net amount due to Rosemarie of $36,450. The trial court also allocated the obligation to pay the remaining balance of the attorney fees to Rosemarie.

Rosemarie and Louis both filed motions to reconsider. The trial court did not rule on these motions until February 6, 1998. On that date, the trial court entered an order vacating the findings that Louis had overpaid Rosemarie in the amount of $76,800, leaving a net amount due to Rosemarie of $36,450. The remainder of the prior order, finding that Rosemarie was due $40,350 in maintenance from Louis, remained in full force and effect. Louis asserts that the trial court entered an order on March 5, 1999, dismissing Count III of his Petition as barred by the doctrine of res judicata, but does not identify where this order appears in the record. However, the supplemental transcripts of proceedings show that this was the opinion of the trial court on March 5, 1999.

Louis now appeals to this court. Louis does not identify where the Notice of Appeal appears in the record. Louis has included a purported copy of the Notice of Appeal in the appendix to his brief, but this document bears no date stamp from the circuit court of Cook County. This court's records show that Louis timely filed his Notice of Appeal on April 2, 1999.

I

Initially, Louis argues that the second trial judge erred in entering judgment for Rosemarie because the first trial judge had already stricken a similar motion on August 3, 1992. Louis contends that after August 3, 1992, all that remained was a fee dispute between Rosemarie and her attorneys. Thus, Louis concludes that the August 3, 1992, order was final and appealable. Louis argues that Rosemarie's failure to timely move for reconsideration rendered the order res judicata on the issue, or the law of the case. Indeed, Louis contends that the second trial judge lacked jurisdiction to enter judgment in favor of Rosemarie.

The issue is whether the August 3, 1992, order was final. Generally, an order dismissing or striking a complaint is not final unless the language of the order also indicates that the litigation is terminated and that the plaintiff will not be permitted to plead over. Miller v. Suburban Medical Center at Hoffman Estates, Inc., 184 Ill.App.3d 545, 547, 132 Ill.Dec. 737, 540 N.E.2d 477, 478 (1989). Of course, substance rather than form may determine whether a general order of dismissal is a final adjudication. Pfaff v. Chrysler Corp., 155 Ill.2d 35, 62-63, 182 Ill.Dec. 627, 610 N.E.2d 51, 63 (1992). Orders of a trial court must be interpreted from the entire context in which they were entered, with reference to other parts of the record including: the pleadings, motions and issues before the court; the transcript of proceedings before the court; and arguments of counsel. P & A Floor Co., Inc. v. Burch, 289 Ill.App.3d 81, 88, 224 Ill.Dec. 546, 682 N.E.2d 107, 111 (1997). Orders must be construed in a reasonable manner to give effect to the apparent intention of the trial court. Burch, 289 Ill. App.3d at 88-89, 224 Ill.Dec. 546, 682 N.E.2d at 111.

In this case, the record on appeal, including the August 3, 1992, transcript, shows that the first trial judge did not believe that the attorney fee dispute was the only issue to be considered on remand. The record clearly shows that the trial court intended to hold a hearing on the issues identified in this court's prior opinion, including the unallocated child support issue. Thus, the August 3, 1992, order was not final.

Louis argues in the alternative that the second trial judge erred in entering judgment for Rosemarie because the first trial judge's August 3, 1992, order was correct on the merits. As noted above, the record shows that the August 3, 1992, order was not directed at the merits of Rosemarie's claim for restitution. Nevertheless, this court will address Louis's arguments in turn.

Louis first relies on section 413(a) of the Illinois Marriage and Dissolution of Marriage Act (Act), which provides in part that "[a]n order directing payment of money for support or maintenance of the spouse or the minor child or children shall not be suspended or the enforcement thereof stayed pending the appeal." See 750 ILCS 5/413(a) (West 1992). However, Louis provides absolutely no coherent explanation of how a statute which prohibits a court from suspending or staying a maintenance order pending an appeal grants him a vested right in the reduced payment on remand after an order reducing maintenance is reversed on appeal.

Louis next contends that the reduced payments should not be retroactively disturbed because they were made in accordance with a valid statute and...